From the Bill of Rights to the Alien and Sedition Acts

1. From the Bill of Rights to the Alien and Sedition Acts

2. The Promise of 1787 "After a period of six thousand years had elapsed since the creation, the United States exhibits to the world the first instance of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live.“ James Wilson, 1787

3. The Ratification Debates: Predicting the Future “The original interpretations of 1787-1788 could yield nothing more than reasonable explanations and predictions of what the Constitution would mean.” Jack Rakove, Original Meanings, 160.

4. Perilous Times “Alexander Hamilton and James Madison, two of the driving forces behind the Constitution, went to their death with the Union’s vulnerability on their mind.” Joanne Freeman

5. The Odd Bookends of the 1790s Amendment I [1791] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

6. The Sedition Act of 1798 SECT. 2.And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

7. Working Constitution Our Two Constitutions Formal 1787-1788 Constitution 1791 Bill of Rights Precedents Habits Understandings Attitudes “[The first decade of our history as a sovereign nation. . . set the precedents, established in palpable fact what the Constitution had only outlined in purposely ambiguous theory, thereby opening up and closing off options for all the history that followed.” • Joseph Ellis, Founding Brothers, 11-12.

8. Competing Visions Alexander Hamilton—a nationalist in the 1780s, who sought to build a modern European-type state in the 1790s (federal bureaucracy, standing army, perpetual debts, and a powerful executive) Thomas Jefferson—supported only amending the Articles of Confederation in the 1780s and emerged as the leader of opposition to the Federalists in the 1790s James Madison—an ardent nationalist in the 1780s, with Hamilton co-wrote much of The Federalist Papers, but in 1792 became fearful of the powerful national government that he had helped to create.

9. Still Debating After All These Years “It is truly humbling, perhaps even dispiriting, to realize that the historical debate over the revolutionary era and the early republic merely recapitulates the ideological battle conducted at the time, that historians have essentially been fighting the same battles, over and over again, that the members of the revolutionary generation fought originally among themselves. Though many historians have taken a compromise or split-the-difference position over the ensuing years, the basic choice has remained constant, as historians have declared themselves Jeffersonians or Hamiltonians, committed individualists or dedicated nationalists, liberals or conservatives, then written accounts that favor one camp over the other, or that stigmatizes one side by viewing it through the eyes of the other, much as the contestants did back then.” --Joseph Ellis, Founding Brothers, 11-12.

10. Launching the New Republic On June 21, 1788, New Hampshire Ratifies the Constitution On February 4, 1789 Electors cast their votes On April 14, 1789, George Washington is notified

11. First Inaugural Address Fellow-Citizens of the Senate and of the House of Representatives: No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency; and in the important revolution just accomplished in the system of their united government the tranquil deliberations and voluntary consent of so many distinct communities from which the event has resulted can not be compared with the means by which most governments have been established without some return of pious gratitude, along with an humble anticipation of the future blessings which the past seem to presage. These reflections, arising out of the present crisis, have forced themselves too strongly on my mind to be suppressed. You will join with me, I trust, in thinking that there are none under the influence of which the proceedings of a new and free government can more auspiciously commence.

12. Making Amends Besides the ordinary objects submitted to your care, it will remain with your judgment to decide how far an exercise of the occasional power delegated by the fifth article of the Constitution is rendered expedient at the present juncture by the nature of objections which have been urged against the system, or by the degree of inquietude which has given birth to them. Instead of undertaking particular recommendations on this subject, in which I could be guided by no lights derived from official opportunities, I shall again give way to my entire confidence in your discernment and pursuit of the public good; for I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience, a reverence for the characteristic rights of freemen and a regard for the public harmony will sufficiently influence your deliberations on the question how far the former can be impregnably fortified or the latter be safely and advantageously promoted.

13. Why do we have a Bill of Rights? Quiet the minds of people uneasy about the new government Help bring North Carolina and Rhode Island into the union Secure the people’s faith in public rights Allow the judiciary to become the peculiar guardians of these rights “There might have been a federal Constitution without Madison but certainly no Bill or Rights.” Gordon S. Wood, Empire of Liberty, 69.

14. Madison’s Proposal From more than 200 proposed amendments, he selected only 12 that focused on the protection of personals rights and amendments that would not harm “the structure & stamina of Government.” (i.e., taxation, regulation of elections, judicial authority, and presidential terms.”). He proposed that they be incorporated in Article I, Section I—as prohibitions on Congress; and also an amendment that would have prohibited States, not only the Federal Government, from violating rights of conscience, freedom of the press, and trial by jury in criminal cases.

15. Establishing the Judiciary The Judiciary Act of 1789 Washington’s Judicial Selection Criteria The Appointment of Chief Justice John Jay

16. Hamilton’s Economic Vision On September 11, 1789, Alexander Hamilton become Secretary of the Treasury How to mobilize best the economic energies of the people? Faith in the Merchant class 1. Sound system of taxation 2. Stability of credit, national and international 3. Secure the Public Debt 4. National Bank (dependable sources of credit and a substantial circulating medium based on a minimum of scarce specie) c. 1755 to 1804 “Facing a chaotic treasury burdened by the heavy debt of the Revolutionary War, Hamilton's first interest when he took office was the repayment of the war debt in full. ‘The debt of the United States ... was the price of liberty,‘’ he affirmed, and he then put into effect, during 1790 and 1791, a revenue system based on customs duties and excise taxes. http://www.treasury.gov/about/history/Pages/ahamilton.aspx

17. Congressman James Madison (February 2, 1791) “The essential characteristic of the government, as composed of limited and enumerated powers, would be destroyed: If instead of direct and incidental means, any means could be used, which in the language of the preamble to the bill, "might be conceived to be conducive to the successful conducting of the finances; or might be conceived to tend to give facility to the obtaining of loans.”

18. What’s a President to do? “Washington was genuinely perplexed. He had never used the veto before, and he must have been disturbed by the constitutional arguments propounded by a trusted advisor in an area where he did not have much faith in his own unaided judgment.” • Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800

19. “Mr. President” The Supreme Court won’t provide him with an advisory opinion Attorney General Edmund Randolph provides legal analysis. Secretary of State Thomas Jefferson provides legal analysis. Secretary of the Treasury Alexander Hamilton provides a rebuttal.

20. The French Revolution in America Jefferson and the Democratic-Republicans Hamilton and the Federalists Proclamation of Neutrality (1793), Washington and the Citizen Genet “Every true friend to this Country must see and feel that the policy of it is not to embroil ourselves with any nation whatsoever; but to avoid their disputes and politics; and if they will harass one another, to avail ourselves of the neutral conduct we have adopted. Twenty years peace with such an increase in population and resources as we have a right to expect; added to our remote situation from the jarring powers, will in all probability enable us in a just cause to bid defiance to any power on earth.”

21. The Whiskey Rebellion of 1794 Farmers in Western Pennsylvania: “Liberty, Equality and Fraternity” Putting down the rebellion Condemning Democratic Societies

22. President Washington to Congress (November 19, 1793) “During the session of the year one thousand seven hundred and ninety, it was expedient to exercise the legislative power, granted by the constitution of the United States, 'to lay and collect excises." In a majority of the States, scarcely an objection was heard to this mode of taxation. In some, indeed, alarms were at first conceived, until they were banished by reason and patriotism. In the four western counties of Pennsylvania, a prejudice, fostered and embittered by the artifice of men, who labored for an ascendency over the will of others, by the guidance of their passions, produced symptoms of riot and violence.”

23. Diplomacy Jay’s Treaty (1795)—recognized England’s right to retain tariffs on American exports; granted English imports most-favored status in the U.S.; implicitly accepted English impressments of American sailors; committed the U.S.to compensate English creditors for pre-revolutionary debt; England agreed to submit claims by Americans merchants for confiscated cargoes to arbitration; and evacuate troops from their posts on the Western frontier A repudiation of the Franco-American Alliance of 1778

24. Independence Abroad The Significance of George Washington’s Retirement and Farewell Address Unity at Home Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

25. An Era of Crisis, 1796-1801 The 1796 Election (President Adams and Vice President Jefferson) John Addams October 30, 1735— July 4, 1826 Thomas Jefferson April 13, 1743— July 4, 1826

26. The Sedition Act “From July 1798 to March 1801, when the Sedition Act expired, the Federalists arrested approximately twenty-five well-known Republicans under the act. Fifteen of these arrests led to indictments. Ten cases went to trial, all resulting in convictions. In addition, the Federalists initiated several common-law prosecutions for seditious libel.” (Geoffrey Stone, Perilous Times, 63).

27. The Federalist Justification “There is a want of accordance between our system and the state of our public opinion. THE GOVERNMENT IS REPUBLICAN; OPINION IS ESSENTIALLY DEMOCRATIC. . . .Either, events will raise public opinion high enough to support our government, or public opinion will pull down the government to its own level. They must equalize.” Federalist Fisher Ames in 1800

28. Legitimacy and Authority “If the masses lost respect for their political leaders, what would be the foundation of government? Were the personal reputations of national political leaders the ultimate source of political legitimacy and authority? And if so, did seditious attacks against national officeholders strike at the process of democratic representation itself?” Joanne Freeman

29. “Wouldn’t Be Prudent” Dana Carvey portraying President George Herbert Walker Bush on Saturday Night Live.

30. The Virginia Resolutions (1798) That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

31. The Kentucky Resolutions (1798) That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter so ever offered, to violate that compact:

32. The 1800 Election President Jefferson, “We are all Republicans, we are all Federalists.”

33. The Jeffersonian Revolution “Federalism is to become so scouted that no party can rise under [that name]. . . .I shall . . .by the establishment of republican principles. . .sink federalism into an abyss from which there shall be no resurrection for it.” • Thomas Jefferson in a private letter, 1801

34. Are you a? Jeffersonian or Hamiltonian? Committed individualist or dedicated nationalist? Liberal or Conservative?

35. Further Readings Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (Vintage Books, 2002). Ellis provides incisive analysis of six key episodes from the nation’s founding Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (Yale University Press, 2002). Freeman emphasizes the cultural component of politics. Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (Oxford University Press, 1993). This is an essential political history. Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act to the War on Terror (W.W. Norton, 2004). Stone includes a fascinating chapter on the 1790s. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009). Wood provides a fascinating account of the Alien and Sedition Acts.